Chat : August 20, 2007

Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

----------------

Attorney Murthy : It is wonderful to have so many of you with us again today. We welcome your questions and look forward to helping you with your immigration matters.

----------------

Chat User : Is there a chance EAD will be approved before I-140? If so, can we change the company after 6 months on EAD approval, even though the I-140 is pending?

Attorney Murthy : It is very possible, and quite likely, that one's EAD will be approved before the I-140 approval, especially if there is no Premium Processing available for the I-140 petition. But simply having the EAD does not allow one to change the employer / company, since AC21 law requires that the I-140 be either approved or approvable and that the I-485 be pending at least 180 days. It is simply the law, not what one wishes one could do!

----------------

Chat User : Are all fiscal year 2007 employment immigrant visas going to issued by September? If not, will it spill onto October, since these visas were pre-allocated during July fiasco?

Attorney Murthy : By law, the entire quota of 140,000 employment-based immigrant visa numbers for fiscal year (FY) 2007 must be used up by Sep 30, 2007. If they are not all used the numbers are lost forever. In fact, last year in FY2006, the U.S. Department of State was forced to lose out on 10,000 unused visa numbers, which is why they were determined not to waste the numbers this year by making the priority dates current for July 2007. The USCIS, unfortunately, tried to use the entire 60,000+ quota within 3 weeks; a feat that they could not accomplish in about 6 months before July 2007! On Oct 1st, the new EB quota numbers will be released, but by law must be allocated for each quarter.

----------------

Chat Master : The information provided during the Chat session is of a general nature and MAY NOT apply to any specific or particular circumstance. It is NOT to be construed as Legal Advice and does NOT establish an attorney-client relationship.

----------------

Chat User : Dear madam, thanks for great service. Being the priority date of year 2005 - could you please tell us whether it is correct to assume that name check / security check has been completed if one has been issued an RFE? Recently, NSC/TSC have been sending 485 approvals for the PD in 2005. Thanks.

Attorney Murthy : There is no guarantee that one's security check has cleared simply because an RFE was issued on the case. It may have been cleared for many, but some may be delayed. The percentage of cases delayed solely due to security checks are few, but the total number of people stuck in limbo for years is several tens of thousands.

----------------

Chat User : My spouse is on H1B. Would it be a problem to her I-485 processing (applied as a derivative) if she stopped working and is not on payroll after applying for I-485?

Attorney Murthy : There is no problem for one to either stop working or to start work once the EAD is issued and approved. Once a person has filed the I-485, s/he is considered to be in a period of "stay authorized by the Attorney General" or, since March 1, 2003, by the Secretary of the U.S. Department of Homeland Security. Thus, one could chose to rely upon the I-485 pending, if s/he so chooses.

----------------

Chat User: What happens if I get a notice for fingerprinting and cannot attend, since I am abroad. Will my I-485 get denied automatically?

Attorney Murthy : There is generally a timeframe allowed to go for fingerprinting, in case one is abroad. One can send a letter or call the USCIS to reschedule the fingerprinting appointment. There are instructions on the bottom of the fingerprint notice.

----------------

Chat Master : We have many folks logged in - your Question with the answer may take awhile to appear on the screen. Please be patient.

----------------

Chat User : EB2 - Exceptional Ability Category: Can a master's degree in the related field be used as one of the six listed points for eligibility requirements of "EB2-Exceptional ability" filing?

Attorney Murthy : Yes, an MS or MA degree is sufficient to meet the criteria, but simply fulfilling the criteria does not assure that one is entitled to obtain the EB2 classification or the NIW approval.

----------------

Chat User : Will I be out of status if my H-1 expires but already concurrently filed I-140 & I-485 but not got the receipt numbers?

Attorney Murthy : If a one's H1B expires, and the I-140 and I-485 have been filed, but no EAD or other valid work status has been received, the person must stop working for the employer and wait until the EAD is approved, which could take 3 or 4 months. That is why it is less expensive to spend the money to file an H1B extension, since for professionals, in most cases, the cost of the H1B filing is less than the loss of 4 months of pay. However, one can legally rely upon the I-485 as a basis for remaining in the U.S.

----------------

Chat User : Thanks for wonderful service. Is it required for dependent to be in USA at time of I-140 filling?

Attorney Murthy : No, the dependent is not required to be present in the U.S. at the time of the principal filing the I-140 petition, but the dependent must be present in the U.S. at the time of filing her/his own I-485 to be able to adjust from nonimmigrant to immigrant status within the U.S.

----------------

Chat Master : For anyone in need of advice on a specific matter, you may wish to visit http://www.murthy.com/consult.html following the Chat for information on paid CONSULTATIONS. Our helpful staff can schedule telephone, eMail, or in-person consultations with Atty Murthy or one of our other experienced attorneys.

----------------

Chat User : If the employer revokes an approved H1B before joining work or stamping, will the employee have to go through the H1B quota again?

Attorney Murthy : No. If one was previously issued either H1B status within the U.S. or an H1B visa stamp from a U.S. consulate abroad, then s/he is not to be counted against the H1B quota again within the 6 year timeframe.

----------------

Chat User : Can a person transfer an approved H1B with just the H1B receipt notice? (no pay stubs or approval notice)

Attorney Murthy : A person is allowed to use the H1B receipt notice to file a new H1B with a new employer based on showing that s/he was, in fact, maintaining valid nonimmigrant status and has been counted against the cap. However, the Polodny memo on bridging one's status may come into play, where the USCIS could deny the last H1B petition extension of status if the intermediate H1B status for the individual is denied or the H1B petition is denied in the earlier H1B filing.

----------------

Chat User : Can a person be the founder of a tech startup while on EAD (I-140 Approved, AOS pending)?

Attorney Murthy :  Yes, a person on an EAD is allowed to work for any employer and in any job, including a start-up company. Moreover, as long as the new employment position is considered to be in the "same or similar" job category by the USCIS to the job listed on the LC and I-140 petition for that person, s/he may even be able to obtain the I-485 approval based on working with his/her own start-up company. See the Yates memo on this topic, as described on MurthyDotCom.

----------------

Chat User : My H-1 expires on Sep 1, 2007. I applied for extension on Aug 6, 2007, regular processing, and the same reached the USCIS office by Aug 07, 2007. If I do not get receipt by Sept 1, 2007, what will be my status?

Attorney Murthy :  One is considered to be in a "period of authorized stay," based on the filing of the H1B extension, but obtaining the receipt notice provides the person with more security, indicating that the USCIS has, in fact, received the H1B extension and accepted it for filing. The law only requires that the H1B employer file the H1B extension prior to expiration of the prior status. The problem is that there is no way of being sure if one's package was received and accepted by the USCIS until the receipt notice is issued.  

----------------

Chat Master : There are about 30 minutes remaining in tonight's MurthyChat.

----------------

Chat User : Hello, Attorney Murthy. With the recent rush for I-140/I-485 filings - do you think USCIS will be able to handle the load of petitions? Will I-485 processing for EB3 categories take extremely long time, since I assume most petitions will be EB3?

Attorney Murthy : Well, it does not depend entirely upon how long the USCIS will take to process the cases. It depends as much or more upon when the particular priority date for any given case will become current. There were apparently about 300,000 filings made during July and through Aug 17, 2007 under this mad rush. There has not been any official count of I-485s, and we are assuming that the 300,000 filings included EAD and AP filings. However, given the per-country quota in each EB category, it could be several years, at least, before many of the later PDs will be able to obtain their I-485 approvals. But they potentially could enjoy the huge benefit of AC21 portability, to change employers and not have to start a brand new GC filing after the I-140 is approved and the I-485 has been pending for over 180 days.

----------------

Chat User : Does the I-485 application need to be pending for a certain number of days before it can be approved?

Attorney Murthy : There is no min or max timeframe. It depends upon priority dates and how quickly the USCIS can act. If the person's PD is current, the USCIS could make a decision within a few months. In fact, for those nationals of countries where there are no backlogs in EB2, we have seen the I-485s approved within 3 or 4 months. Of course, given the volume of filings between mid June and August 17, processing times are very difficult to predict.

----------------

Chat Master : Our liaison office, Murthy Immigration Services, Pvt. Ltd., in Chennai, India is available to provide comprehensive and convenient service to our clients and prospects in South Asia who are seeking help with U.S. immigration services. Learn more about our liaison office at http://www.murthyindia.com

----------------

Chat User : My kudos to your excellent service. While I-140 is pending, if I travel out of country using AP, and if there is an RFE during this time, will I be allowed to reenter without any issues? I do not have visa stamped in PP.

Attorney Murthy : A person is allowed to reenter after an RFE is issued on the I-485 or the I-140. The risk in choosing to enter on the AP is that, if the I-485 is denied when one is abroad, the CBP then has the right to prevent that person from entering the U.S. That is why it is recommended that one file the H1B extension and choose to enter in the H1B status after obtaining the H1B visa stamp at the U.S. consulate abroad.

----------------

Chat User : Dear Murthyji, I filed my I-140 and I-485 concurrently on July16th. I got my receipt notice today. Is it advisable to travel to Canada to get my H-1 visa stamped? Please let me know. I know many of my friends are in the same situation.

Attorney Murthy : Well, it really depends on where one was educated. If it is U.S. education, then it is much safer in Canada; but if it is Indian or other foreign education, then the U.S. consulate in Canada or Mexico is not willing to make a determination on the bona fides of that education, so the likelihood of a visa rejection is higher in such cases. Of course, if the person's H1B visa is denied, then s/he cannot just reenter the U.S., but will be required to travel from Canada to the home country to apply for the H1B visa stamp there. If a person has advance parole, then s/he could reenter using that.

----------------

Chat User : Thank you for the great service. If my spouse, who is a derivative on H1B, stops working and goes out of the country, can she come back on the same H1B?

Attorney Murthy : If the spouse on H1B stops working and no longer intends to reenter the U.S. to work for the H1B-sponsoring employer, then s/he cannot use the H1B to reenter the U.S. Such a person must enter in H-4 status or the AP after the I-485 is filed to avoid being considered in violation of his/her status, and to avoid the allegation of fraud by the USCIS.

----------------

Chat Master : Check out the MurthyForum - a 'message / discussion' board helping immigrants connect over the Internet. Registered members of the Forum can post and respond to messages, some of which are also responded to by our ATTORNEYS. Access MurthyForum from our main page or go directly to http://www.murthy.com/mforum.html.

----------------

Chat User : Can a person on EAD, while I-485 pending, do part-time employment as well as the full-time job? Is there any field limitation on the part-time job?

Attorney Murthy : Yes, a person with an EAD is allowed to work with other employers in any other job/s, as long as s/he continues to work for the GC-sponsoring employer, or in the same or similar field of work, so as to try and obtain the I-485 approval. The EAD allows unrestricted employment. Any part-time or side job is fine. It is necessary to have an appropriate job offer in order to get the green card approval.

----------------

Chat Master : There are about 15 minutes remaining in tonight's MurthyChat.

----------------

Chat User : Is it suggested for one to travel outside of USA for H1B extension stamping while I-485 receipt number is awaited? If EAD and Advance Parole are not filed, is there any impact on I-485 processing if I-94 number changes? If yes, when is the best time to travel?

Attorney Murthy : The safest time to travel abroad is after the I-485 receipt notice is obtained, the person's AP is approved, and the person also has the H1B original approval notice and the H1B visa stamp to reenter the U.S. By reentering in H1B status, s/he has a valid backup status in case of any problems with the I-485 approval. It does not matter if the I-94 number changes.

----------------

Chat User : If EB2 is approved and I go for consular processing, do I have to come back to the U.S. with job offer after getting GC?

Attorney Murthy : Yes, a person choosing CP must work for the GC-sponsoring employer after obtaining the GC, otherwise it is deemed fraud, since the AC21 employer-changing privileges only apply if one filed the I-485 and it was pending for at least 180 days after the I-140 was approved, or at least approvable.

----------------

Chat Master : Your participation has made this the Internet's most popular chat on U.S. immigration law! MurthyChat is one of the few weekly chats on U.S. immigration law offered and run by a law firm. Another FREE and VALUABLE SERVICE proudly offered by the Murthy Law Firm and MurthyDotCom.

----------------

Chat User : How does USCIS handle multiple filings from two different companies for husband and wife?

Attorney Murthy : It is safest not to file multiple I-485 cases for each spouse, as we have repeatedly advised folks. This potentially delays and/or confuses both filings; although it is not specifically prohibited. If the filings have already been made, then be prepared to explain why there were multiple filings for the same person, if asked.

----------------

Chat User : Under what circumstances an I-140 be rejected or denied and what happens to a pending I-485 in such a case, while the EAD is approved?

Attorney Murthy : The I-140 petition can be denied or rejected when the employer is having financial problems or the tax returns do not show profits sufficient to pay the offered wage. The I-140 can also be denied if the person does not have a single-source, 4-year degree, or otherwise doesn't qualify for the job offered, based upon the required education and/or experience. If the EAD is approved, then it does not matter, since the I-485 will be denied and the person's EAD is no longer valid for employment since the basis of the I-485 and the EAD was the I-140 that is resting on a weak or nonexistent foundation!

----------------

Chat User : Dear Murthy, I am on H-1 and just got my EAD. Do I need to be on payroll to maintain my status of H-1, while simultaneously using EAD? Thanks in advance.

Attorney Murthy : Generally, a person with an EAD is allowed to maintain both H1B and EAD status by choosing to work for the H1B employer and extending H1Bs with that employer. If the person does not wish to work for the H1B employer, then the H1B no longer remains valid.

----------------

Chat Master : MurthyDotCom - MurthyBulletin - MurthyChat - and the MurthyForum - Your ultimate U.S. immigration resources on the Internet all start with MURTHY!

----------------

Chat User : Does non-completion of master's degree while in F-1 status, have an adverse effect on the H1B Visa approval? H1B visa was processed on bachelor's degree and as a fresh H-1 and not change of status.

Attorney Murthy : Although that is a question that the consular officer may pose for one to verify whether s/he indeed intended to pursue the master's degree when obtaining the F-1 visa stamp, it is usually not a reason to deny the person's H1B in and of itself. It could be the reason if there are concerns about fraud or misrepresentation in some cases though, if the person never attended school or attended very little school. So the burden to show eligibility is on the visa applicant.

----------------
Chat User: Do you expect the USCIS to reintroduce Premium Processing in the near future?

Attorney Murthy : Yes, it seems likely, since this generates additional funds for the USCIS, but they will not be able to do that for the next few months with the large volume of I-140s filed during the July / August 2007 filing rush, so that people could try and file their I-485s.

----------------

Chat User : Is it possible to file for H-1 extenion when LC is filed in the 6th year of H1B and I-140 is pending for approval?

Attorney Murthy : No. If the person's LC was not filed at least a year earlier or, specifically, at least 365 days earlier, or the I-140 is not approved, the person cannot obtain either the 1-year H1B extension or the 3-year H1B extension. If the I-140 is approved, then s/he could obtain the 3-year extension. One option could be to depart the U.S. right away to recapture time abroad and file H1B extensions.

----------------

Chat Master : This ends tonight's session of the MurthyChat.

----------------

Attorney Murthy : Thank you for your active interest and participation in our MurthyChat. We look forward to continuing to help you, your family and friends with all of your immigration matters.

----------------

Chat Master : Thank you all for logging in! The schedule will be posted at http://www.murthy.com/chat.html

----------------

Laws are constantly changing. While accurate at the time of publication, this item is retained for archival and historic purposes and should not be presumed to be up-to-date indefinitely.

Responses vary with the nuances of each question and because immigration law is constantly changing. The subtle differences in questions may call for very different legal responses and strategies. You are advised to treat these materials as general information, not to be applied to a specific circumstance without consulting with your attorney.

It is illegal to copy this material for distribution or posting.

Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved